After Supreme Court strikes down eviction ban, Democrats scramble to find response

Justice Kavanaugh indicated the likely decision from the court

Rep. Maxine Waters had urged the Biden administration to extend the eviction moratorium despite Justice Kavanaugh's indication that the court would find it unconstitutional.
 (Tom Williams/CQ Roll Call file photo)
Rep. Maxine Waters had urged the Biden administration to extend the eviction moratorium despite Justice Kavanaugh's indication that the court would find it unconstitutional. (Tom Williams/CQ Roll Call file photo)
Posted August 27, 2021 at 11:53am

The Supreme Court’s 6-3 decision to strike down the federal eviction moratorium puts pressure on Congress to take action less than a month after House Democrats fell short of the votes needed to extend the protections to the end of the year.

Democrats are split on whether to try again to extend the ban legislatively or focus instead on a measure that would speed up state and local governments’ distribution of $46 billion in rental assistance previously provided by Congress to tenants and landlords to cushion the economic fallout from the pandemic.

House Financial Services Chairwoman Maxine Waters, D-Calif., sponsor of the bill to extend the moratorium, shifted focus in a statement Friday to getting $25 billion in rental assistance authorized in December and the $21.6 billion authorized in March out faster.  As of July 30, state and local governments had spent only $5.1 billion, according to the Treasury Department. 

“While I introduced the original bill to extend the eviction moratorium until December 31, without the votes to pass it action must still be taken,” Waters said. “Accordingly, I immediately set to work on a legislative solution to address issues with the slow implementation of the emergency rental assistance program.”

About 6 million households are behind on rent and in danger of being evicted, according to the Census Household Pulse Survey.

Majority Leader Steny H. Hoyer, D-Md., sought unanimous consent to pass Waters' bill on July 30, but the House rejected that request. The previous eviction moratorium expired on July 31. In the absence of congressional action and under pressure from many Democrats, including Waters, the Centers for Disease Control and Prevention on Aug. 3 extended the protections to Oct. 3.

The Biden administration had insisted for weeks it lacked the legal authority to do so, in part because of an earlier high court decision that left the moratorium in place. But Justice Brett Kavanaugh, who was in the majority on that earlier decision because the moratorium was soon to expire, warned that Congress needed to authorize an extension. 

In an unsigned opinion late Thursday evening, the Supreme Court struck down the moratorium, saying it agreed with a lower court’s assessment that the protections exceeded the agency’s authority. 

Waters’ said her yet-to-be published proposal would ensure renters and landlords can apply to the rental assistance program independently of one another and eliminate red tape. The House is scheduled to return from recess on Sept. 20. 

“We are all well aware of just how critical it is to ensure that families and children across this country remain safely housed with a roof over their heads,” Waters said. “As Congress moves forward to address this issue, I urge each of my colleagues to support my legislation and do the right thing to avoid an unnecessary public health and housing catastrophe.” 

Meanwhile, Rep. Cori Bush, D-Mo., deputy whip of the Congressional Progressive Caucus, said the House should reconvene to either pass Waters’ bill extending the moratorium to the end of the year, or legislation that would explicitly grant the CDC the authority to impose the eviction moratorium. Bush, who led a sleep-in on the steps of the Capitol in protest of the lapsing moratorium in July, played a key role in pushing the Biden administration to extend the protections. 

“We didn’t sleep on those steps just to give up now,” she said in a statement. “Congress must act immediately to prevent mass evictions and I am exploring every possible option. I urge my colleagues to reflect on the humanity of every single one of their unhoused, or soon to be unhoused, neighbors, and support a legislative solution to this eviction crisis.” 

It is unclear what the path forward could be for Waters’ original bill to extend the moratorium. In July, when it failed to receive unanimous consent, Waters said the bill should have gotten a proper vote even though it lacked support from some within her own party. 

“There was a difference of opinion between me and House Democratic leadership about how we should respond to this emergency,” Water said July 30 in a statement. “I wanted leadership to put my bill up for a vote on the Floor under a rule.” 

“Our latest count did not show we had enough votes. But I was hopeful that once on the Floor, the handful of Members who were unsure of the bill would experience a change of heart and vote ‘yes’ based on the request from the President and the support of the overwhelming majority of the Democratic caucus,” she said. “I believe we should have fought to our very last breath.”

Bush, along with Reps. Ayanna S. Pressley, D-Mass., Alexandria Ocasio-Cortez, D-N.Y, and Jimmy Gomez, D-Calif., led 60 other Democrats in a letter to House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Charles E. Schumer, D-N.Y., to attach an eviction moratorium to “must-pass” legislation.

“If we do not act, this will undoubtedly lead to the increased spread of COVID-19, more deaths, and community wide trauma,” they said in the letter.

Meanwhile, Republicans, including House Financial Services ranking member Patrick T. McHenry, R-N.C., who objected to extending the protections in July,  blamed Democrats in the wake of the Supreme Court’s decision, saying the position renters now find themselves in was predictable and avoidable.

“No one should be surprised by this decision,” McHenry said in a statement. “Instead of fixing the flawed Emergency Rental Assistance program to provide support to families in need, the Biden Administration extended its unconstitutional eviction moratorium. This shortsighted move did absolutely nothing to help renters or address the Administration’s mismanagement of $46 billion in aid.” 

McHenry said a bill he introduced in June would have delivered rental assistance to renters and landlords faster. The bill would combine the two emergency rental assistance programs, which have slightly different provisions, and require state and local governments to spend all $46 billion by the end of the year.